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Davey vs. Goliath

National | LAW: The Supreme Court appears poised to render another landmark 5-4 ruling on religious liberty, with Sandra Day O'Connor once again the likely swing vote. The case, argued last week, revolves around state scholarships and religious higher education-but the implications are enormous, from private-school vouchers to the entire faith-based initiative

As a first-year student at Harvard Law School, Joshua Davey is used to scrutinizing the Supreme Court. And so, he admits, it was "a little bit surreal" on Dec. 2 when the tables were turned and the black-robed justices scrutinized him.

His case, Locke vs. Davey, is one of the most important cases on the docket this year. It didn't attract the throngs of emotional protesters sure to descend on Washington later this year for the Pledge of Allegiance arguments, but the Davey case is potentially far more significant. At stake are anti-religious amendments in 37 states, and, perhaps, the future of school vouchers and faith-based initiatives.

Of course, none of that was apparent back in 1999 when Mr. Davey enrolled in Northwest College, an Assemblies of God school outside Seattle, Wash., with a double major in business and pastoral studies. As a top-ranking high-school graduate with demonstrable financial need, he received a state-sponsored Promise Scholarship valued at more than $2,500. But two months into his first semester, he received an unwelcome surprise: Officials announced that scholarship recipients could not study theology because of a stipulation in the state constitution that "no public money shall be applied to any religious worship, exercise, or instruction."

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He could have changed his major to qualify for the money, but Mr. Davey chose to sue the state, take an outside job, and continue studying for the ministry. Even as he worked his way through school, his case worked its way through the courts. Lawyers for the American Center for Law and Justice argued that singling out theology students discriminated against religious believers and interfered with the free exercise of their beliefs.

A trial judge disagreed with that assessment, but the liberal 9th U.S. Circuit Court of Appeals, in a surprise decision last year, ruled that "the state may neither favor, nor disfavor, religion. A law targeting religious beliefs as such is never permissible."

That set up last week's showdown before the Supreme Court. A ruling in favor of Mr. Davey means 37 states would have to revoke their Blaine Amendments, a series of anti-religious provisions, like the one in Washington state, passed more than 100 years ago in a wave of anti-Catholic fervor. While the First Amendment strikes a delicate balance between the free exercise of religion and the nonestablishment of religion, states with Blaine Amendments tilt heavily in favor of the latter-and that, according to critics, singles out religious believers for discrimination.

Mr. Davey, for instance, could have pursued any other major and received his money from the state. He could even have studied theology at a state university and still qualified for funds. But because he studied religion at a religious institution, he was told he'd have to pay for his own education.

"By expressly singling out for special disabilities only those students, like Joshua Davey, who are pursuing theology degrees taught from a religious viewpoint, the state has committed a textbook violation of the free exercise clause of the First Amendment," said the ACLJ's Jay Sekulow in his Supreme Court brief.

The state of Washington insisted it was not discriminating but simply exercising its right to spend its money as it sees fit. "There is no question that Davey has a constitutional right to practice his religion, including pursuing a degree in theology," said a brief filed by William Collins, Washington's senior assistant attorney general. "However, he does not have a constitutional right to have the state of Washington pay for it."

A decision in Mr. Davey's favor would mark a sea change in the Supreme Court's thinking on church-state relations. After decades of outright hostility, the current court has often been friendlier toward religion, chipping away at restrictions that prohibit the faithful from participating in government programs.

Last year, for instance, in a victory for proponents of school vouchers, the court ruled that states could make funds available for religious education if they chose to do so. But the logic in the Davey case would go further still: It suggests that states be required to make public funds available on an equal basis. In other words, if a state funds scholarships for the study of English or computer science, then it must fund scholarships for religious studies as well. Denying public funds to religious persons or institutions would no longer be a valid choice for state officials.

By striking down the Blaine Amendments, Davey would affect a whole host of issues, from school vouchers to after-school programs to funding for rescue missions. The case was so important to the Bush administration that it lent its top litigator, Solicitor General Ted Olson, to argue alongside Mr. Sekulow.

State governments weighed in as well, hoping to clear up constitutional confusion over the funding of religious projects. Florida Gov. Jeb Bush, for example, filed a friend-of-the-court brief on Mr. Davey's behalf, knowing that a favorable ruling would overturn a lower court ruling that blocked his state from providing aid to church schools.

In opposing Mr. Davey's lawsuit, liberal interest groups like the ACLU found themselves taking an awkward states'-rights position. "Within the range of acceptable options, there is nothing wrong with letting states pursue their own visions of religious freedom," said Aaron Caplan of the Washington ACLU, which filed a brief supporting the state's policy. That's 180 degrees from the ACLU's position in the Alabama Ten Commandments case, where the organization urged the federal courts to overrule the state's vision of religious freedom.

Conservatives also found themselves on the opposite end of their usual states'-rights arguments. Although the federal courts are often viewed as the enemy of religious freedom, the 37 states with Blaine Amendments frequently go beyond federal public policy in their restrictions on religion. By asking the Supreme Court to override a state constitution, conservatives tacitly admitted that the court does have a proper role in such disputes.

As with so many major issues before the Supreme Court, the outcome in Davey will likely hinge on a single vote. Justice Stephen Breyer noted during oral arguments that the implications of overturning the Washington law would be "breathtaking." He's expected to side with the state of Washington, joined by John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg.

Justice Clarence Thomas, on the other hand, wrote an earlier opinion blasting the Blaine Amendments as being "born of bigotry" toward Catholics. He was joined in that opinion-and probably will be again-by William Rehnquist, Antonin Scalia, and Anthony Kennedy.

That scenario leaves Sandra Day O'Connor holding the decisive vote. She decided last year to uphold vouchers, but seemed troubled during oral arguments last week by the scope of the Davey case. "What you are urging would have a major impact," she said during Mr. Sekulow's arguments, noting that there are "a couple of centuries of practice in this country of not funding religious institutions with tax money."

The court is expected to rule by next summer. In the meantime, life goes on for the young man at the center of the legal storm. He has no younger siblings who would benefit from a change in Washington's laws, but he hopes to see the day when "the state will no longer be able to discriminate on the basis of religion in its Promise Scholarships or any other state program. I hope this can be a stepping stone to ending religious discrimination everywhere," he told WORLD shortly after leaving the court chambers.

Maybe one day he'll be back in a different role. After working his way through school and graduating with honors, he decided his future lay in a different direction than he'd originally planned. He says there were "lots of personal implications" to his ordeal. He's in law school today because the case "got me thinking about my role as a Christian in society and how I was going to live out my faith. I see it as a different kind of ministry."